Filing and Addressing a Formal Complaint

VII. Filing and Addressing a Formal Complaint

A. Filing a Formal Complaint

A formal complaint is defined as a written document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the University investigate the allegation of sexual harassment. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information required to be listed for the Title IX Coordinator. Additionally, a “document filed by a complainant” can be in the form of an electronic submission (such as by electronic mail or through an online portal provided for this purpose by the University) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. In situations where the Title IX Coordinator initiates or signs a formal complaint, the Title IX Coordinator is not a complainant and must comply with the guidelines outlined in this section.

The University may consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances. The same facts and circumstances means that the multiple complainants’ allegations are so intertwined that their allegations directly relate to all parties.

When receiving a Formal Complaint, the Title IX Coordinator shall conduct an initial assessment to determine what Prohibited Conduct is properly alleged, whether informal resolution would be appropriate in the case given the allegations, and whether any of the allegations constitute “Sexual Harassment – Title IX” under this Policy.

The Title IX Coordinator may, in his or her sole discretion, dismiss a Formal Complaint or allegations therein if at any time during the investigation or hearing:

A complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein;
The respondent is no longer enrolled in or employed by the University; or
Specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

Such a dismissal does not preclude the University from taking action under another procedure designed to address potential violations of University policy. The University will promptly send written notice of the dismissal and reasons for the dismissal simultaneously to the parties.

B. Notice to Parties of Formal Complaint

If the Title IX Coordinator determines that the formal complaint alleges sufficient information to suggest that Prohibited Conduct may have occurred, the Title IX Coordinator will provide written notice to all parties of the charges that will be investigated. The charges may include violations of other University policies where such charges are related to the Prohibited Conduct under investigation. In such cases, these policy violations will be addressed pursuant to this Policy and not any other disciplinary process, such as the student conduct process.

The written notice shall include:

Notice of this Policy;
Allegations of Prohibited Conduct and any other violations of University policy that will be considered in the same case, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview;
The identities of the Parties involved;
The date and location of the alleged incident(s) (if known);
The University’s position that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
The right of each party to have an advisor of their choice, who may be an attorney, at all meetings and proceedings relating to the Formal Complaint;
The right of each party to inspect and review evidence;
The University’s prohibition on knowingly making false statements or knowingly submitting false information during the grievance process;
The date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings currently scheduled, with sufficient time for the party to prepare to participate.

If additional allegations are determined to be appropriate to add to the investigation at a later time, the Title IX Coordinator shall provide notice of such allegations in writing to all parties.

C. Informal Resolution

After the initiation of a formal complaint of Prohibited Conduct, if all parties voluntarily consent in writing, the University will assist the parties in an informal resolution process. An informal resolution process is available at any time prior to reaching a determination regarding responsibility in the formal resolution process, except in the cases of reports of “Sexual Harassment – Title IX” of a student by a University employee.

The University does not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, the waiver of the right to an investigation and adjudication of formal complaints of Prohibited Conduct under the University’s Policy. Similarly, The University will never require the parties to an allegation of Prohibited Conduct to participate in an informal resolution process, as described below.

Before initiating an informal process, the University will: (1) provide the parties a written notice that an informal resolution process is available to them; and (2) obtain the parties’ voluntary, written consent to the informal resolution process. The written notice to the parties will disclose the allegations, the requirements of the informal resolution process (described below), and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.

The University’s informal process enables that, at any time prior to agreeing to a resolution, any party has a right to withdraw from the informal resolution process and resume the formal resolution process with respect to the formal complaint.

Three possible options for Informal Resolution are:

Supportive Resolution: When the Title IX Coordinator can resolve the matter informally by providing supportive measures (only) to remedy the situation.
Alternative Resolution: An informal approach by which the parties reach a mutually agreed upon resolution of an allegation. This could include practices such as:
1. Mediation
2. Restorative practices
3. Facilitated Dialogue
Accepted Responsibility: When the Respondent accepts responsibility for violating policy, and desires to accept a sanction(s) and end the resolution process;

When allegations of Prohibited Conduct can be resolved through informal resolution by mutual consent of the parties and on a basis that is acceptable to the Title IX Coordinator, the resolution process shall be considered finally decided and there will be no subsequent process or appeal.

In the event that the Title IX Coordinator has any conflict of interest in resolving the complaint in a fair and impartial manner, then the complaint shall be submitted to a deputy Title IX Coordinator or another individual appointed by the General Counsel of the University to serve as a substitute Title IX Coordinator.

D. Formal Resolution

1. Timelines

The University will attempt to complete most investigations within 90 days. The timeframe for formal investigations will begin upon filing of a formal complaint and will conclude upon submission of a decision by the decision-maker. Investigations may be delayed and timeframes for investigations may be extended for good cause and with written notice provided by the Title IX Coordinator to complainants and respondents including the reason for the delay or extension. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; intervening breaks in the University’s academic calendar; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. Where a timeline is extended, the University will communicate with the parties in writing about the delay and the reason for the delay. The University will attempt to accommodate the schedules of parties and witnesses, however, grievance resolution must be completed in a reasonably prompt timeframe, and must proceed to conclusion even in the absence of a party or witness.

For purposes of this policy, all time requirements contained in the formal resolution process and any appeal shall mean business, not calendar, days.

2. Impartiality of Process

Any individual acting as a Title IX Coordinator, investigator, decision-maker, appeals officer, or any person designated by the University to facilitate an informal resolution process must not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. The following will not be considered evidence of bias:

The Title IX Coordinator’s initiation of a formal complaint;
An individual’s decision that allegations warrant an investigation, or;
The fact that person is employed, or otherwise paid by, Cedarville University.

The University will apply an objective (whether a reasonable person would believe bias exists), common sense approach to evaluating whether a particular person serving in a Title IX role is biased, and will exercise caution not to apply generalizations that might unreasonably conclude that bias exists. An individual’s current job title, professional qualifications, past experience, identity, or sex will not alone indicate bias.

Use of trauma-informed practices will not be considered evidence of bias when such practices do not:

Rely on sex stereotypes;
Apply generalizations to allegations in specific cases;
Cause loss of impartiality, and;
Prejudge the facts at issue.

3. Investigation

After a Formal Complaint is filed, the Title IX Coordinator shall assign the matter to a deputy Title IX Coordinator, or another person who has been trained to conduct investigations under Title IX, for investigation. The Title IX Coordinator assigned to a particular case may not serve as the investigator.

The investigator will offer each party and their advisor of choice a meeting to discuss the allegations, provide the names and contact information of potential witnesses, and provide other evidence relevant to the allegations. The concept of Relevance is described in Section VII(D)(6), below. The investigator will collect all relevant documents and information from each party and establish a deadline for the receipt of such information and documents from each party. The investigator will also interview any relevant witnesses to the allegations and may request documentation from the appropriate departments and offices at the University. Both the Complainant and the Respondent shall have the right to provide witness information and evidence to the investigator. If any party or witness refuses or fails to respond to the investigator’s request for information, or otherwise fails to cooperate, the investigator may nevertheless continue the investigation.

Investigators will make audio recordings of all interviews. Unauthorized audio or video recordings of any kind are not permitted during investigation interviews.

A party’s advisor is permitted to accompany a party to any meeting or proceeding relating to the Formal Complaint. However, the advisor is not permitted to speak on behalf of the party during the investigation stage. If an advisor refuses to comply with this restriction, the University may require the party to use a different advisor.

The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the University and not on the parties.

The University will not access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the University obtains that party’s voluntary, written consent.

The University will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.

The University will not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence. A party’s communication with a witness or potential witness is considered part of a party’s right to meaningfully participate in furthering the party’s interests in the case, and not an “interference” with the investigation. However, where a party’s conduct toward a witness might constitute “tampering” (for instance, by attempting to alter or prevent a witness’s testimony), such conduct also is prohibited as retaliation.

The parties will have an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the University does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source. The University will not consider or provide for inspection and review evidence which the University knows was illegally or unlawfully created or obtained. The University may impose on the parties and party advisors restrictions or require a non-disclosure agreement not to disseminate any of the evidence subject to inspection and review.

When the investigator believes he or she is ready to prepare the investigative report, the Title IX Coordinator will send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties will have 10 business days to submit a written response.

The investigator will review the parties’ written responses, conduct any follow-up investigation he or she deems appropriate, and prepare an investigative report that summarizes relevant evidence. Unless required by the Family Educational Rights and Privacy Act (FERPA) or extraordinary circumstances, witness names and other identifying information in reports will not be redacted. Redaction decisions will be solely determined by the Title IX Coordinator. The investigative report will not include a summary of evidence not considered to be relevant. If the complaint involves multiple complainants, multiple respondents, or both, the University may issue a single investigative report.

The investigative report will include an assessment as to whether the conduct, if proven, would constitute “Sexual Harassment – Title IX” as defined within this Policy. The Title IX Coordinator will review the assessment and shall notify the parties within two business days of receiving the investigative report whether the Title IX Coordinator concurs with the assessment of the investigator. If the Title IX Coordinator determines that none of the conduct, if proven, would constitute “Sexual Harassment – Title IX,” the Title IX Coordinator shall mandatorily dismiss the case from the hearing process and the case shall proceed to an Investigative Resolution pursuant to Section VII(D)(5). If the Title IX Coordinator determines that at least some of the conduct, if proven, would constitute “Sexual Harassment – Title IX,” the case shall proceed to a Hearing pursuant to Section VII(D)(4). The Title IX Coordinator’s decision may be appealed to the General Counsel’s designee in writing within 5 business days of receipt of the decision. The designee’s decision is final.

Each party and their advisor shall receive a copy of the investigative report for their review and written response, at least 10 calendar days prior to a hearing or other time of determination regarding responsibility. If a party disagrees with an investigator’s determination about relevance, the party may argue relevance in their written response.

4. Hearing

Upon conclusion of the investigation, where it is determined that there are allegations of “Sexual Misconduct – Title IX,” the University will conduct a live hearing.

The Title IX Coordinator will appoint a hearing officer to conduct the hearing and be the decision-maker. The hearing officer may not be the Title IX Coordinator, the investigator who investigated the allegations, or the informal resolution officer. The hearing officer is under an obligation to objectively evaluate all relevant evidence both inculpatory and exculpatory. The hearing officer has the right to ask questions and elicit information from parties and witnesses on the hearing officer’s own initiative.

At least five business days prior to the hearing, a pre-hearing conference will be held with each party, the party’s advisor, the Title IX Coordinator, and the hearing officer. At the pre-hearing conference, the party and advisor must disclose the witnesses that will be requested and the evidence that will be submitted for consideration. Evidence and witnesses may only be considered at hearing if they were submitted to the investigator, unless they were previously unknown or unavailable to the party during the investigation. The hearing officer will address any requests for new evidence and new witnesses at the pre-hearing conference. The hearing officer will also discuss guidelines for appropriate behavior and decorum during the hearing. The party and advisor are encouraged to ask questions.

Hearings will be conducted with all parties physically present in the same geographic location or, at the University’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.

The University will create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.

At the live hearing, the hearing officer will permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Before a complainant, respondent, or witness answers a cross-examination or other question, the hearing officer will first determine whether the question is relevant and explain any decision to exclude a question as not relevant. All evidence subject to the parties’ inspection and review will be available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.

The hearing officer makes relevancy determinations. The hearing officer is not required to give a lengthy or complicated explanation of a relevancy determination during the hearing, and may send to the parties after the hearing any revisions to the hearing officer’s explanation that was provided during the hearing.

Cross-examination at the live hearing will be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. All questioning will be relevant, respectful, and non-abusive. No party will be “yelled” at or asked questions in an abusive or intimidating manner.

Any party or witness may choose not to offer evidence and/or answer questions at the hearing, either because they do not attend the hearing, or because they attend but refuse to participate in some or all questioning. The Hearing Officer(s) can only rely on whatever relevant evidence is available through the investigation and hearing in making the ultimate determination of responsibility. The hearing officer may not draw any inference solely from a party’s or witness’s absence from the hearing or refusal to submit to cross-examination or answer other questions.

Parties will have equal opportunities to have others present during the hearing, including the opportunity to be accompanied by the advisor of their choice, who may be, but is not required to be, an attorney. The University will not limit the choice or presence of an advisor for complainant or respondent in any meeting or grievance proceeding. Advisors are required to abide by University restrictions regarding the extent to which they may participate in proceedings, and any restrictions will apply equally to both parties. If a party’s advisor refuses to comply with restrictions set by the University, the University may require the party to use a different advisor.

If a party does not have an advisor present at the live hearing, the University will provide without fee or charge to that party, an advisor of the University’s choice to conduct cross-examination on behalf of that party. Each party must have an advisor present at the live hearing; there are no exceptions. That advisor may be, but is not required to be, an attorney.

Relevancy determinations will be made pursuant to Section VII(D)(6). Credibility will be considered pursuant to Section VII(D)(7). Decisions will be prepared pursuant to Section VII(D)(8). Sanctions, if any, will be determined pursuant to Section VII(D)(9). Additional remedies, if any, will be determined pursuant to Section VII(D)(10).

5. Investigator Resolution

Upon conclusion of the investigation, where it is determined that there are no allegations of “Sexual Misconduct – Title IX,” the investigator will be the decision-maker. The investigator will review the responses to the investigative report and revise it as appropriate. The investigator will then analyze the evidence, including inculpatory and exculpatory evidence, using the concepts of credibility and relevance as described herein, and issue a written decision as to whether any policy violations have occurred by using a preponderance of the evidence standard.

After an Investigator has rendered a written decision as to whether any non “Sexual Misconduct – Title IX” violations have occurred (i.e. the Investigator’s Resolution), either Party may appeal the Investigator’s Resolution by filing a written notice of appeal with the Title IX Coordinator within five (5) days of the Investigator’s Resolution.

6. Relevancy

Relevant evidence is evidence that tends to make a fact that is important to the case either more probable or less probable. Relevant questions are those questions that are designed to elicit relevant evidence.

The following may be considered irrelevant:

Repetitive or duplicative questions or evidence;
Information that is protected by a legally recognized privilege, such as attorney-client privilege;
Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior, unless:

Such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant; or
The questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent;

Any party’s medical, psychological, and similar records, unless the party has given voluntary, written consent for their use in the process.

The University will not exclude relevant evidence because such relevant evidence may be unduly prejudicial, concern prior bad acts (unless excluded above), or constitute character evidence. However, the decision-maker may objectively evaluate such evidence by analyzing whether that evidence warrants a high or low level of weight or credibility.

7. Credibility Assessment

The decision-maker will evaluate all admissible, relevant evidence for weight or credibility. The degree to which any inaccuracy, inconsistency, or implausibility in a narrative provided by a party or witness should affect a determination regarding responsibility is a matter to be decided by the decision-maker, after having the opportunity to ask questions of parties and witnesses, and to observe how parties and witnesses answer the questions posed by the other party (in the case of a live hearing). Corroborating evidence is not required.

Credibility determinations are not based solely on observing demeanor, but also are based on other factors (e.g., specific details, inherent plausibility, internal consistency, corroborative evidence). Additionally, credibility determinations will not be based on an individual’s status as a complainant, respondent, or witness.

A party’s answers to questions can and should be evaluated by a decision-maker in context, including taking into account that a party may experience stress while trying to answer questions. Parties will not be unfairly judged due to inability to recount each specific detail of an incident in sequence.

8. Decisions

The decision-maker will issue a written determination of responsibility using a “preponderance of the evidence” standard. A preponderance of the evidence means that it is more likely true than not that a policy violation occurred. The respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.

The determination of responsibility will include:

Identification of the allegations potentially constituting sexual harassment
A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
Findings of fact supporting the determination;
Conclusions regarding the application of the Policy to the facts;
A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the University imposes on the respondent (see Section VII(D)(9)), and whether remedies will be provided by the University to the complainant (see Section VII(D)(10)), and;
The University’s procedures and permissible bases for the complainant and respondent to appeal (see Section VII(E)).

The determination will lay out the evidentiary basis for conclusions reached in the case. The nature of remedies, if any, will not be included within the determination. The determination will be provided to the parties simultaneously. The determination becomes final only after the time period for appeal has expired or, if a party does file an appeal, after the appeal decision has been sent to the parties.

9. Sanctions

In the event the decision-maker investigator finds that the Respondent has committed an act of sex discrimination as defined by this policy, the matter will proceed as follows:

Students: If the Respondent is a University Student, the Dean of Women and/or Dean of Men will determine and administer the appropriate disciplinary action.
Staff: If the Respondent is a staff member, the Title IX Coordinator will recommend the appropriate disciplinary action to the Associate Vice President of Human Resources.
Faculty: If the Respondent is a faculty member and his or her conduct warrants discipline that is less severe than discharge or suspension, the Title IX Coordinator will recommend sanctions to the Vice President for Academics. In cases where the faculty member’s actions warrant discharge or termination of employment, the Title IX Coordinator will recommend to the President that termination proceedings be initiated. If the President accepts the recommendation, the matter will proceed in accordance with the terms of the University’s Faculty Handbook providing for Dismissal for Cause. If a faculty member is found to have committed a sexual assault, then the matter may proceed in accordance with the terms of the University’s Faculty Handbook providing for Dismissal for Cause.

Sanctions may include a warning, reprimand, educational interventions, counseling, community service, restitution, probation, no contact orders, suspension, dismissal, termination, and other restrictions as to access and use of University facilities, property, or activities.

10. Remedies

Where a determination of responsibility for Prohibited Conduct is made, the University will provide remedies to a complainant designed to restore or preserve equal access to the University’s education program or activity. Such remedies may include the same individualized services provided as supportive measures; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent. The Title IX Coordinator is responsible for effective implementation of remedies.

Where the final determination has indicated that remedies will be provided, the complainant can then communicate separately with the Title IX Coordinator or their designee to discuss what remedies are appropriately designed to preserve or restore the complainant’s equal access to education. Remedies for a complainant which do not affect the respondent must not be disclosed to the respondent.

E. Appeals

Any party may appeal the decision-makers’ determination regarding responsibility, or the University’s dismissal of a formal complaint or any allegations therein. The University will notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties. Both parties will have a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome. Any appeal must be filed in writing with the Title IX Coordinator within five (5) business days of the investigator’s decision.

Grounds for appeal include:

Procedural irregularity that affected the outcome of the matter;
New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter, and;
The Title IX Coordinator, investigator, or Panel members had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.

All grounds for appeal will be available to all parties.

If one party appeals, the other party may review and respond to the appeal in writing to the Title IX Coordinator within five (5) days of receiving a copy of the appeal.

The General Counsel shall appoint an appropriate, trained, impartial decision-maker for an appeal, in whose sole discretion is deemed to be appropriate. The decision-maker for the appeal will not be the same person as the decision-maker that reached the determination regarding responsibility or dismissal, the investigator, or the Title IX Coordinator.

The decision-maker for the appeal will, within ten (10) days of receipt of the appeal(s) and any response(s), issue a written decision describing the result of the appeal and the rationale for the result and provide the written decision simultaneously to both parties. Extensions may be granted by the Title IX Coordinator for good cause upon written notice to the parties.

Except where suspension or expulsion has been imposed, any appeal of the decision and recommendation shall stay the imposition of sanctions, but only during the pendency of the appeal. If the disposition of the appeal does not alter the recommended sanction, disciplinary action shall proceed. Any actions pertaining to the safety and well-being of either party, or other remedial measures put in place by the Title IX Coordinator prior to or in conjunction with the formal resolution process shall remain in place even during an appeal.